Autrefois acquit - Cause of action estoppel - Disciplinary procedures - Abuse of process

R (on the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales: SC (Lords Phillips, Rodger, Collins, Clarke, Dyson): 19 January 2011

The appellant chartered accountant (C), who was a member of the respondent professional body (ICAEW) appealed against a decision ([2009] EWCA Civ 730) that it was not an abuse of process for the ICAEW to prefer a second disciplinary complaint against him after its first complaint covering the same allegations had been dismissed.

C had formerly practised in Jersey. He had been convicted on a charge of failing to comply with a direction of the Jersey Financial Services Commission, as a result of which the ICAEW preferred a complaint of discreditable conduct against him under disciplinary bylaw (4)(1)(a). The complaint was dismissed because the disciplinary committee was not satisfied that C’s conviction corresponded with any indictable offence in England and Wales. The ICAEW preferred a second complaint under the same bylaw, relying not on C’s conviction, but instead detailing his conduct that had led to his conviction. The disciplinary committee upheld the second complaint and C’s membership of the ICAEW was terminated. He appealed and the issues in the case concerned the relevance and application of the principles of autrefois acquit, res judicata and abuse of process in the context of successive proceedings before a regulatory or disciplinary tribunal. The judge at first instance had agreed with the committee that the two complaints did not allege the same thing, and the Court of Appeal supported that reasoning while also finding that there had been no abuse of process.

Held: (1) The principle of res judicata required that the second complaint be dismissed because it alleged the same breach of the same bylaw as the first complaint (see paragraph 51 of judgment). A conviction alone was not capable of amounting to discreditable conduct and could not be treated as being one of the occurrences referred to in bylaw (4)(1)(a). The conviction was merely proof of discreditable conduct and therefore the act complained of in the first complaint was not the fact of being convicted, but the failure to comply with the commission’s direction (paragraphs 14-16). That was precisely the same complaint as had been advanced the second time (paragraphs 17-20).

(2) The principles of autrefois acquit did not apply to disciplinary matters, which were civil not criminal proceedings (paragraphs 22-24). Res judicata applied to civil proceedings and there was no reason why cause of action estoppel, one of the two limbs of res judicata, should not apply to proceedings before a disciplinary tribunal established under bylaws, as long as all the constituent elements were met (paragraphs 25-29, 34). The first decision had been final and on the merits (paragraphs 35, 41-43, 55, 60). For that reason, despite the thoroughly undesirable result of allowing a person who had shown himself unfit to practise to continue to do so, the principle of res judicata was a bar to the second complaint, Trade Indemnity Co Ltd v Workington Harbour and Dock Board (No2) [1938] 2 All ER 101 HL followed and Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 HL considered (paragraphs 44-46, 64). Whether or not the court should recognise a public interest exception to the strict application of the doctrine of cause of estoppel was a matter for parliament, not for the courts (paragraphs 48-50).

Appeal allowed.

Lawrence Jones, Joseph Curl (instructed by Marriott Harrison) for the appellant; Michael Beloff QC, Catherine Callaghan (instructed by Bates Wells & Braithwaite) for the respondent.